AC-2025-LON-000997 - [2025] EWHC 1970 (Admin)

In my judgment, Mr Milford is correct to submit that the duty contended for by the claimants in this case would go beyond anything recognised by existing case law of the Strasbourg or domestic courts and would be inconsistent with important principles recognised in that case law.

Article 1 ECHR imposes on contracting states the obligation to “secure to everyone within their jurisdiction” the rights and freedoms in Section I. In general, a person is within a state’s “jurisdiction” for these purposes when he or she is within its territory, subject to limited exceptions in cases where the state exercises authority and control over an individual or has “effective control” over the areas where he or she is located: Al Skeini, [131]-[139].

Since “family life” is a unitary concept, the interests protected by the right to respect for family life are not divisible: Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39, [2009] 1 AC 115, [4] and [20]. Accordingly, if one member of the family is within the territorial jurisdiction, Article 8 may impose certain obligations on the state to promote the reunification of the family, even though some family members are outside the jurisdiction: Abbas v Secretary of State for the Home Department [2017] EWCA Civ 1393, [2018] 1 WLR 533, [17].

The key question, however, concerns the extent of these obligations. There is no doubt that Article 8 (in common with some other ECHR rights) can and does imply positive obligations in certain circumstances. But the Strasbourg Court has been cautious in recognising new circumstances in which positive obligations arise. Article 8 may in a particular case generate a positive obligation on a state to promote family reunification by admitting a person who presents himself or herself at that state’s border. It may generate a positive obligation to provide travel documents to enable an individual to get to the border. It is, however, quite a different matter to suggest that Article 8 requires positive action in the form of diplomatic or consular assistance. There is no Strasbourg authority to suggest that it does. On the contrary, the Grand Chamber of the Strasbourg Court has said in terms, relatively recently, that the ECHR “does not guarantee the right to diplomatic or consular protection”: HF v France, [201].

In HF, the applicant was a national of France and relied on Article 3 of Protocol No. 4 (“A3P4”), which provides: “No one shall be deprived of the right to enter the territory of the State of which he is a national”. On the face of it, it might be thought that this provision would impose an obligation on states which have ratified it (not including the UK) to take certain steps to facilitate the return of their nationals. The Court, however, held that such obligations did not extend to a right to assistance with repatriation: see [253]-[259].

The fact that this case was brought under A3P4, far from assisting the claimants to distinguish it, seems to me to make it a stronger authority for the Foreign Secretary. The right conferred by A3P4, on its face, confers an express and absolute right on nationals of a state to enter the territory of that state. Nationals of a state which has ratified A3P4 are, therefore, in an even stronger position than non-nationals such as the claimants with conditional rights to enter for family reunification purposes. If A3P4 generates no right to assistance with repatriation in the case of a national, it is difficult to see why Article 8 should do so in the case of non-nationals.

In my judgment, the Foreign Secretary is also correct that an expansion of the scope of positive obligations owed by contracting states under Article 8 would be inconsistent with broader principles recognised by the Strasbourg Court. The precise ratio of the decision of the European Commission on Human Rights in the Bertrand Russell case is somewhat difficult to define. It is clear, however, that the Strasbourg Court has relied on that decision and others following it as authority for the proposition that “no right to diplomatic intervention vis-à-vis a third State, which by action within its own territory has interfered with Convention rights of a person ‘within the jurisdiction’ of a Contracting State, can be inferred from the obligation imposed on the Contracting States by Article 1 of the Convention to ‘secure’ that person’s rights”: see e.g. S v Germany (App. No. 10686/83), a case which concerned consular assistance rather than diplomatic protection. The Commission considered that proposition to be consistent with Article 34 of the Vienna Convention on the Law of Treaties. See also M v Italy (2013) 57 EHRR 29, [127], and the cases cited there.

None of the three Strasbourg cases cited by Mr Owen supports the proposition that Article 8 can imply positive obligations to afford consular assistance in circumstances such as these. Two of those cases—Rantsev and Güzelyurtlu—were concerned with the investigative duty under Articles 2 and 4 ECHR. In each case, it was significant that the states between which co-operation was required were (at the time) both ECHR contracting states: see Rantsev, [205]-[208]; Güzelyurtlu, [232]-[234]. Nada, though it was an Article 8 case, arose in very unusual circumstances and concerned an enclave under the jurisdiction of one contracting state (Italy) surrounded by the territory of another (Switzerland).

Two conclusions follow from my analysis of the case law of the Strasbourg Court. First, there is no Strasbourg authority which supports the proposition that Article 8 can imply a positive duty to provide either diplomatic protection or consular assistance to an individual who is located outside its territory (and outside the “espace juridique” of the ECHR), even if the failure to provide that protection or assistance has an impact on the Article 8 interests of a person within the UK’s territorial jurisdiction. Secondly, any expansion of the scope of the Article 8 positive duty in the way contended for by the claimants would infringe a principle which has hitherto been regarded by the Strasbourg institutions as an important corollary of the jurisdictional limitation in Article 1 ECHR. In those circumstances, such an expansion would be impermissible: see R (Ullah) v Secretary of State for the Home Department, [2004] UKHL 26, [2004] 2 AC 323, [20].

For these reasons, the Foreign Secretary’s refusal to provide consular assistance to the claimants did not interfere with any Article 8 right of the claimants. The question of justification therefore does not arise. Ground 2 accordingly fails.